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Friday, September 9, 2016

availability of alternative remedy of criminal revision under Section 397 Cr.P.C. by itself cannot be a good ground to dismiss an application under Section 482 of Cr.P.C.=In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in the case of Dhariwal Tobacco Products Ltd. (supra) and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in the case of Sanjay Bhandari (supra) passed by another learned Single Judge on 05.02.2009 in S.B. Criminal Miscellaneous Petition No. 289 of 2006 which is impugned in the connected Criminal Appeal arising out of Special Leave Petition No. 4744 of 2009. As a result, both the appeals, one preferred by Prabhu Chawla and the other by Jagdish Upasane & Ors. are allowed. The impugned common order dated 02.04.2009 passed by the High Court of Rajasthan is set aside and the matters are remitted back to the High Court for fresh hearing of the petitions under Section 482 of the Cr.P.C. in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters expeditiously, preferably within six months. Since that order has been set aside while allowing those appeals hence the order impugned in this appeal also has to be set aside for the same very reasons and for the view taken by us in respect of scope and ambit of Section 482 of the Cr.P.C. Accordingly this appeal is also allowed and impugned order is set aside with the same directions as in the other two appeals.

Leave granted.
First we take up appeals of Prabhu Chawla and Jagdish Upasane and ors. as
these two criminal appeals seek to assail a common order dated 02.04.2009
whereby the High Court of Judicature for Rajasthan at Jodhpur dismissed the
petitions preferred by the appellants under Section 482 of the Code of
Criminal Procedure (for brevity ‘Cr.P.C.’). High Court held the petitions
to be not maintainable in view of judgment of Rajasthan High Court in the
case of Sanjay Bhandari v. State of Rajasthan[1] (impugned in the other
connected appeal) holding that availability of remedy under Section 397
Cr.P.C. would make a petition under Section 482 Cr.P.C. not maintainable.
While considering all these matters at the SLP stage, on 05.07.2013, a
Division Bench found the impugned order of the High Court to be against the
law stated in Dhariwal Tobacco Products Ltd. and Ors. v. State of
Maharashtra and another[2]. In that case the Division Bench concurred with
the proposition of law that availability of alternative remedy of criminalrevision under Section 397 Cr.P.C. by itself cannot be a good ground todismiss an application under Section 482 of Cr.P.C. But it noticed that a
later Division Bench judgment of this Court in the case of Mohit alias Sonu
and another v. State of Uttar Pradesh and another[3] apparently held to the
contrary that when an order under assail is not interlocutory in nature and
is amenable to the revisional jurisdiction of the High Court then there
should be a bar in invoking the inherent jurisdiction of the High Court. In
view of such conflict, these cases were directed to be placed before the
Hon’ble Chief Justice for reference to a larger Bench and that is how the
matters are before this Bench for resolving the conflict.
The facts of these appeals need not detain us because in our considered
opinion the view taken by the Rajasthan High Court in the impugned order is
contrary to law and therefore matters will have to be remanded back to the
High Court for fresh consideration on merits within the scope of inherent
powers available to the High Court under Section 482 Cr.P.C. It would
suffice to note that in both these appeals, the miscellaneous petitions
before the High Court arose out of an order dated 30.11.2006 passed by
learned Judicial Magistrate No. 3, Jodhpur in the complaint no. 1669 of
2006, whereby it took cognizance against the appellants under Section 228A
of the Indian Penal Code and summoned them through bailable warrants to
face further proceedings in the case.
Mr. P.K. Goswami learned senior advocate for the appellants supported the
view taken by this Court in the case Dhariwal Tobacco Products Ltd.
(supra). He pointed out that in paragraph 6 of this judgment Justice S. B.
Sinha took note of several earlier judgments of this Court including that
in R.P. Kapur v. State of Punjab[4] and Som Mittal v. Govt. of Karnataka[5]
for coming to the conclusion that “only because a revision petition is
maintainable, the same by itself, ………, would not constitute a bar for
entertaining an application under Section 482 of the Code.” Mr. Goswami
also placed strong reliance upon judgment of Krishna Iyer, J. in a Division
Bench in the case of Raj Kapoor and Ors v. State and Ors[6]. Relying upon
judgment of a Bench of three Judges in the case of Madhu Limaye v. The
State of Maharashtra[7] and quoting therefrom, Krishna Iyer, J. in his
inimitable style made the law crystal clear in paragraph 10 which runs as
follows:
“10. The first question is as to whether the inherent power of the High
Court under Section 482 stands repelled when the revisional power under
Section 397 overlaps. The opening words of Section 482 contradict this
contention because nothing of the Code, not even Section 397, can affect
the amplitude of the inherent power preserved in so many terms by the
language of Section 482. Even so, a general principle pervades this branch
of law when a specific provision is made: easy resort to inherent power is
not right except under compelling circumstances. Not that there is absence
of jurisdiction but that inherent power should not invade areas set apart
for specific power under the same Code. In Madhu Limaye v. The State of
Maharashtra this Court has exhaustively and, if I may say so with great
respect, correctly discussed and delineated the law beyond mistake. While
it is true that Section 482 is pervasive it should not subvert legal
interdicts written into the same Code, such, for instance, in Section
397(2). Apparent conflict may arise in some situations between the two
provisions and a happy solution
“would be to say that the bar provided in sub-section (2) of Section 397
operates only in exercise of the revisional power of the High Court,
meaning thereby that the High Court will have no power of revision in
relation to any interlocutory order. Then in accordance with one or the
other principles enunciated above, the inherent power will come into play,
there being no other provision in the Code for the redress of the grievance
of the aggrieved party. But then, if the order assailed is purely of an
interlocutory character which could be corrected in exercise of the
revisional power of the High Court under the 1898 Code, the High Court will
refuse to exercise its inherent power. But in case the impugned order
clearly brings about a situation which is an abuse of the process of the
Court or for the purpose of securing the ends of justice interference by
the High Court is absolutely necessary, then nothing contained in Section
397(2) can limit or affect the exercise of the inherent power by the High
Court. But such cases would be few and far between. The High Court must
exercise the inherent power very sparingly. One such case would be the
desirability of the quashing of a criminal proceeding initiated illegally,
vexatiously or as being without jurisdiction”.
In short, there is no total ban on the exercise of inherent power where
abuse of the process of the court or other extraordinary situation excites
the court’s jurisdiction. The limitation is self-restraint, nothing more.
The policy of the law is clear that interlocutory orders, pure and simple,
should not be taken up to the High Court resulting in unnecessary
litigation and delay. At the other extreme, final orders are clearly
capable of being considered in exercise of inherent power, if glaring
injustice stares the court in the face. In between is a tertium quid, as
Untwalia, J. has pointed out as for example, where it is more than a purely
interlocutory order and less than a final disposal. The present case falls
under that category where the accused complain of harassment through the
court’s process. Can we state that in this third category the inherent
power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10)
“The answer is obvious that the bar will not operate to prevent the abuse
of the process of the Court and/or to secure the ends of justice. The label
of the petition filed by an aggrieved party is immaterial. The High Court
can examine the matter in an appropriate case under its inherent powers.
The present case undoubtedly falls for exercise of the power of the High
Court in accordance with Section 482 of the 1973 Code, even assuming,
although not accepting, that invoking the revisional power of the High
Court is impermissible.”
I am, therefore clear in my mind that the inherent power is not rebuffed in
the case situation before us. Counsel on both sides, sensitively responding
to our allergy for legalistics, rightly agreed that the fanatical
insistence on the formal filing of a copy of the order under cessation need
not take up this court’s time. Our conclusion concurs with the concession
of counsel on both sides that merely because a copy of the order has not
been produced, despite its presence in the records in the court, it is not
possible for me to hold that the entire revisory power stands frustrated
and the inherent power stultified.”

In our considered view any attempt to explain the law further as regards
the issue relating to inherent power of High Court under Section 482
Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins
with a non-obstante clause to state: “Nothing in this Code shall be deemed
to limit or affect the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order under this Code, or
to prevent abuse of the process of any Court or otherwise to secure the
ends of justice.” A fortiori, there can be no total ban on the exercise of
such wholesome jurisdiction where, in the words of Krishna Iyer, J. “abuse
of the process of the Court or other extraordinary situation excites the
court’s jurisdiction. The limitation is self-restraint, nothing more.” We
venture to add a further reason in support. Since Section 397 Cr.P.C. is
attracted against all orders other than interlocutory, a contrary view
would limit the availability of inherent powers under Section 482 Cr.P.C.
only to petty interlocutory orders! A situation wholly unwarranted and
undesirable.
As a sequel, we are constrained to hold that the Division Bench,
particularly in paragraph 28, in the case of Mohit alias Sonu and another
(supra) in respect of inherent power of the High Court in Section 482 of
the Cr.P.C. does not state the law correctly. We record our respectful
disagreement.

In our considered opinion the learned Single Judge of the High Court shouldhave followed the law laid down by this Court in the case of DhariwalTobacco Products Ltd. (supra) and other earlier cases which were cited butwrongly ignored them in preference to a judgment of that Court in the caseof Sanjay Bhandari (supra) passed by another learned Single Judge on05.02.2009 in S.B. Criminal Miscellaneous Petition No. 289 of 2006 which isimpugned in the connected Criminal Appeal arising out of Special LeavePetition No. 4744 of 2009. As a result, both the appeals, one preferred byPrabhu Chawla and the other by Jagdish Upasane & Ors. are allowed. Theimpugned common order dated 02.04.2009 passed by the High Court ofRajasthan is set aside and the matters are remitted back to the High Courtfor fresh hearing of the petitions under Section 482 of the Cr.P.C. in thelight of law explained above and for disposal in accordance with law. Sincethe matters have remained pending for long, the High Court is requested tohear and decide the matters expeditiously, preferably within six months.

The impugned order in the third appeal, dated 05.02.2009 passed by the High
Court of Judicature for Rajasthan at Jodhpur has been relied upon and
followed while passing the order dated 02.04.2009 impugned in the other two
appeals. Since that order has been set aside while allowing those appealshence the order impugned in this appeal also has to be set aside for thesame very reasons and for the view taken by us in respect of scope andambit of Section 482 of the Cr.P.C. Accordingly this appeal is also allowedand impugned order is set aside with the same directions as in the othertwo appeals.